Wing v. Hayford

Endicott, J. The court is of opinion that judgment must be entered on the verdict. The plaintiff had the right to sell the premises by auction, upon breach of the conditions of the mortgage, and could himself become the purchaser. If the proceeds of the sale were not sufficient to pay the note, an action could be maintained for the balance. Draper v. Mann, 117 Mass. 439. . It appears that there was a breach of the conditions ; that the defendant was notified, before the advertisement, that the premises would be sold unless the note was paid, but failed to take any action. The sale was duly advertised, the defendant saw the notice, attended the sale, and requested Lovell to be present and bid on the property. He made no objection at the sale to any of the proceedings. We fail to find any evidence of fraud on the part of the plaintiff, or any ground for saying that the plaintiff omitted to use a reasonable degree of diligence to protect the interests of the defendant. There is no evidence that Lovell was present as agent of the defendant to buy the property. Neither Lovell nor the defendant so testified, but Lovell did state that he was there with the intention of running it up for the defendant. As matter of law, it cannot be said that it was unreasonable to require $500 to be paid down by the purchaser. The literal terms of the power of sale would authorize a sale for cash. Pope v. Burrage, 115 Mass. 282. And it does not appear that Lovell asked for delay that he might comply with the terms. No question was made, at the sale or in the argument addressed to us, that the auctioneer exceeded his authority in putting up the property a second time, after Lovell had failed to comply with the terms of sale. The case therefore is to be treated, so far as the inadequacy of the price is concerned, as if there had been but one attempt to sell, namely, the last, when the son of the plaintiff bid it in. Mere inadequacy of price is not sufficient to invalidate a sale. King v. Bronson, 122 Mass. 122. 2 Perry on Trusts, § 602 z. No evidence was offered of the actual value of [254] the property; the only fact relied on in this connection by the defendant is, that the plaintiff authorized his son to bid a much higher sum than it actually sold for. Judgment on the verdict.